BURRIDGE & BURRIDGE
[2017] FamCA 581
•2 August 2017
FAMILY COURT OF AUSTRALIA
| BURRIDGE & BURRIDGE | [2017] FamCA 581 |
| FAMILY LAW – PROPERTY – FINAL – Division of Property following a long marriage of 64 years – Where each party accepts that the other’s contribution was significant – Where the Husband argues that there should be an adjustment made in his favour – Where it is found that the parties’ contributions were equal – Where an order is made for the equal distribution of the parties’ assets. | |
| Family Law Act 1975 (Cth) Family Law (Superannuation) Regulations 2001 (Cth) | |
| Bevan & Bevan (2013) FLC 93-545 | ||
| APPLICANT: | Ms Burridge | |
| RESPONDENT: | Mr Burridge |
| FILE NUMBER: | SYC | 2533 | of | 2016 |
| DATE DELIVERED: | 2 August 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 2 August 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lethbridge SC |
| SOLICITOR FOR THE APPLICANT: | Pigott Stinson Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Baston |
| SOLICITOR FOR THE RESPONDENT: | Peter Sochacki Solicitors |
IT IS ORDERED THAT
On or before 4 September 2017 the husband pay to the wife the sum of $1,320,000.
In the event the husband fails to pay the sum required in the preceding paragraph:
(a) The husband shall forthwith do all acts and things and sign all documents necessary to transfer to the wife all of his right, title and interest in the property situated at C Town in the State of New South Wales more particularly described in Folio Identifier … (“Property D”); and
(b) The husband shall forthwith do all acts and things and sign all documents necessary to transfer to the wife all of his right, title and interest in the property situated at E Street, C Town in the State of New South Wales more particularly described in Folio Identifier … (“Property F”).
Subject to paragraph 4 herein:
(a) In accordance with section 94MT(4) of the Family Law Act 1975 (Cth) (“the Act”), a base amount of $450,000 is allocated to the wife out of the husband’s interest in G Superannuation Fund;
(b) In accordance with section 90MT(1)(a) of the Act the wife (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount allocated in the immediately preceding subparagraph, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(c) The entitlement of the husband in the G Superannuation Fund (or the entitlement of such other person who becomes entitled to receive a payment out of the husband’s superannuation interest) is correspondingly reduced by force of this Order;
(d) The trustee of the G Superannuation Fund (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(i)Calculate, in accordance with the requirements of the Act the entitlement awarded to the wife in subparagraph 3 (b); and
(ii)Pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the G Superannuation Fund; and
(iii)This Order has effect from the operative time and the operative time is four days after service of this order on the trustee; and
(iv)That, after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”), the wife shall do all such acts and things and sign all such documents as may be necessary, including but not limited to exercising the wife’s request in accordance with the SIS Regulations for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the wife’s choosing in accordance with the SIS Regulations; and
(v)The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
(vi)Any payment form the husband’s superannuation interest in the G Superannuation Fund made after the trustee has created a new interest in the wife’s name in the G Superannuation Fund are not a splittable payment in accordance with Division 2.2 of the Family Law (Superannuation) Regulations 2001 (Cth).
In the event that the sum provided for in paragraph 1 herein is paid as required, paragraph 3 herein shall be discharged and of no effect.
Contemporaneously with the payment to the wife of the sum required in paragraph 1 herein or the transfer to the wife of ‘Property D’ and ‘Property F’ as required by paragraph 2 herein the wife shall transfer to the husband all her right title and interest in:
(a) The property situated at E Street, C Town in the State of New South Wales more particularly described in Folio Identifier … (“the House Block”);
(b) The National Australia Bank Account CMA number …91;
(c) The livestock and machinery on the House Block;
(d) 200 shares in the H Pty Ltd;
And the wife shall
(e) Withdraw her caveat registered number …; and
(f) Withdraw if necessary unregistered dealing number … whether that dealing has or has not been registered.
Until the husband complies with his obligations under this order the wife is at liberty to lodge a caveat secured over ‘Property F’ being folio identifier ...
Within 42 days of this order the husband shall transfer to the wife all his right title and interest in the following:
(a) 1852 AMP shares;
(b) 834 IAG shares;
(c) 535 IAG shares currently in joint names;
(d) AMP whole of life policy ending in ..22 – …
(e) AMP whole of life policy ending in ..23 – …;
(f) AMP whole of life policy ending in …41 – …;
(g) TAL (Tower) policy of insurance policy number …44; and
(h) Q Bank account number …82.
Contemporaneously with compliance by the husband with paragraph 1 or 2 of this order, the wife shall do all acts and things and sign all documents necessary to transfer to the husband all her right, title and interest in the partnership styled ‘Mr and Ms Burridge’ including but not limited to her capital and current account and all stock, plant and equipment. The husband shall indemnify and keep the wife indemnified against all past, present and future liabilities incurred by the partnership including but not limited to any taxation liability (comprising income tax, the goods and services tax and capital gains tax).
Any reference to a time within which any money is to be paid or any act or any thing is to be done pursuant to this order shall be regarded as a time of the essence provision without the need for a party relying upon such provision giving to the other party a notice rendering time of the essence.
Unless otherwise specified in this order, as against the husband the wife be declared to be the owner at law and in equity of:
(a) Her bank accounts;
(b) Her superannuation entitlements;
(c) Her motor vehicle; and
(d) Household contents as divided between the parties from the house on the ‘House Block’ referred to in Annexure A to this order and those from her residence since separation.
Unless otherwise specified in this order, as against the wife the husband be declared to be the owner at law and in equity of:
(a) The property known as the ‘Property J’ more particularly described in Folio Identifier … and Volume … folio … together with the water licences;
(b) His bank accounts;
(c) His superannuation entitlements;
(d) His motor vehicle;
(e) The loan to Mr K Burridge;
(f) The rent received from the farm house on the ‘Property J’; and
(g) The contents as divided.
(h) In default of the husband or wife doing all acts and things and executing all such documents as a necessary to give effect to this order, a Registrar of the Family Court of Australia at Brisbane be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to sign all documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the order.
In the event that the parties are unable to agree in writing within 21 days of today what costs Order, if any, might be made regarding the costs of and incidental to the said Application:
(a) Each party file within a further 14 days written submissions in respect of that issue; and
(b) Unless either party otherwise therein contends to the contrary, that issue be determined in chambers without the necessity of further appearance by either party.
In the event that the parties reach agreement in writing on the issue of costs, they be at liberty to file jointly, minutes of consent via e-mail to the Associate to Justice Carew.
Annexure A
1.Three beds (including Mr L’s double bed)
2.Glory Box
3.Wedding presents
4.Mr L’s sideboard
5.Traymobile
6.Linen including bedspreads and blankets
7.Personal items including clothes
8.Mr L’s chairs
9.Mr L’s lounge
10.Mr L’s dining table
11.Vacuum cleaner
12.Washing machine
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Burridge & Burridge has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: SYC 2533 of 2016
| Ms Burridge |
Applicant
And
| Mr Burridge |
Respondent
REASONS FOR JUDGMENT
The parties to this application were married for sixty-four years. Unfortunately, they have been unable to resolve their dispute about how to divide their property.
background
The wife and husband married in 1951 and separated in 2015. They have five adult children who range in age from 53 to 64.
The wife is now 89 years of age and the husband is 90.
When they married in 1951 the wife was working in administration and earning £10 per week. She had savings of approximately £2,250.
The husband came from a long line of farmers and had worked on his parent’s farm since he was 14. Within his family it was accepted that he would receive a property known in these proceedings as the ‘Property J’ and so he did in 1951. The property was valued at £4,270 and was subject to a mortgage to his grandfather for £1,700.
The agreement with the husband’s grandfather in relation to the mortgage was that he would pay a living allowance to his grandfather and he did so until his grandfather died in or about 1955. The husband says that no capital payments were made to reduce the mortgage in that time. The wife accepts that the husband’s contribution in relation to the Property J is likely to have exceeded hers for this reason.
Initially the accommodation the parties lived in was very basic indeed. After about a year a house was built and it had modern amenities.
In 1955 a portion of the ‘Property J’ was excised as a house block for the husband’s parents. They lived on what is known in these proceedings as the ‘House Block’ until their death in 1976 and 1977 respectively.
The husband was engaged in farming in partnership with his father and later with his brother and father and later just with his brother and still later with the wife. He worked long and hard in his farming pursuits. He was more than ably assisted by the wife who, by way of example, from 1969 attended to daily farm work which took up to three and a half hours and later when the parties commenced to diversify she assisted with that. She also raised chickens which kept the family supplied with eggs and she maintained a vegetable garden. She also mowed the lawn around their home and attended to general maintenance within the home. All the while the wife was largely responsible for raising the parties’ five sons.
Over the years there were changes to the nature and extent of the properties owned by the parties. When the parties acquired the property known as ‘Property F’ for $23,000 in or about 1975 a similar arrangement with the husband’s parents (as was the case with the husband’s grandfather) was put in place, namely, that they were paid a living allowance. This involved the husband and his brother paying an annual sum of $1,500 and the husband also paid for specific expenses for his parents from time to time. This arrangement continued until his parents died.
It is acknowledged by the wife that not all of the $23,000 purchase price was paid but the husband’s parents also had the benefit of living on that part of the farm known as the ‘house block’ until their death. The ‘house block’ was then purchased by the parties for $30,000.
In 1983 the wife received an inheritance and contributed $40,000 towards the purchase of another property known as ‘Property M’ which was purchased for $245,000 and later $20,000 of her inheritance towards the purchase of irrigation equipment.
In 1994 the parties jointly acquired the property known as ‘Property D’ for $135,000.
The parties continued to operate their various farming ventures until separation in 2015.
Upon separation the husband remained on the farming properties and continues to engage in farming operations although for many years now the farm has run at a loss. The wife has lived with family since separation but has now paid a small deposit on a retirement villa.
Relevant legal principles
The High Court has often stressed that the discretion exercised pursuant to s79 of the Family Law Act 1975 (Cth) is extraordinarily wide.[1] That said it must be exercised in accordance with legal principle.[2]
[1] De Winter & De Winter (1979) FLC 90-605; Norbis v Norbis (1986) 161 CLR 513; Stanfordv Stanford (2012) 247 CLR 108.
[2] Ibid.
The starting point is to consider whether it is just and equitable to make an order at all, by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. Secondly, in exercising the discretion conferred by s79 it should be borne in mind that there is no presumption that the parties’ rights to or interests in property are or should be different from those that currently exist. Thirdly, the consideration of whether it is just and equitable to make an order should not be considered by reference only to the matters in s79 (4).[3]
[3] Stanford (supra); Bevan & Bevan (2013) FLC 93-545.
The Full Court in Bevan observed that while the High Court did not disapprove of the ‘four step process’ neither did it approve of it. The Full Court noted:
71. Stanford will also serve as a reminder that the four step process “merely illuminates the path to the ultimate result”. Any future restatement of that process should incorporate acceptance of the fact that the power to make any order adjusting property interests is conditioned upon the court finding that it is just and equitable to make an order.
Is it just and equitable to make an order?
The property of the parties and estimated values is agreed and set out below:
Ownership Asset Value W House & House Block (approximately 0.49 acres) $500,000 J Property D (approximately 39 acres) $475,000 H Property J & water licenses (approximately 145 acres) $1,700,000 H Property F (approximately 95 acres) $350,000 H Associated water licenses $1 W Q Bank account […92] $194,797 J Q Bank account (HMH) […99] $356 W Q Bank account (DT) […82] $100 W St George … […47] $1,718 W N Ltd […26] $0 W O Ltd (BOQ …26) $507,054 W Macquarie CMA …21 $11,472 W Bankwest …81 $52,997 W Motor vehicle – 2004 $3,000 W House contents $500 H AMP shares (1852 @ 19/7/ 17 @$5.21) $9,648 H HHG (not known) $0 H IAG x 834 @$6.76 @ 19/7/17 $5,637 H AMP Whole of Life Policy …. 22-… $9,251 H AMP Whole of Life Policy …. 23-… $13,436 H AMP Whole of Life Policy …. 41-… $11,206 H new NAB account $61,327 H Loan to Mr K Burridge $115,000 H Interest on loan to Mr K Burridge $0 H Ute $2,000 H Tower Policy $12,022 J Contents of house $4,000 J NAB CMA […91] $1,007 J Macquarie CMA […82] $0 J Livestock $225,150 J Livestock $22,250 J Plant & machinery and inventory $50,000 J P Ltd shares x 130,000 @ (not known) $0 J AMP Saver Account (deal 109335) $0 J IAG x 535 @$6.76 @ 19/7/17 $3,616 J H Pty Ltd $250 W BT Funds $483,403 H G Super $459,886 Total $5,286,084.00
In most cases when determining whether or not it is just and equitable to make an order a court will have regard to the following passage from Stanford & Stanford:[4]
42. In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to a make property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order…
[4] supra
I am satisfied that in the circumstances of this case that it is just and equitable to make an order.
Contributions
Each party accepts that the other’s contribution was significant and made to the best of their respective ability.
However, Mr Baston, counsel for the husband, valiantly argued that there should be an adjustment in favour of his client in the order of 2 ½ to 5 per cent because of the introduction in 1951 of the property known in these proceedings as the ‘Property J’. I note that the husband in the order he seeks proposes that the assets of the parties be divided in the proportion 57/43, a differential of 14 per cent in his favour.
Mr Baston, submitted that it was the introduction of this initial property that acted as a ‘spring board’ for the parties ability to acquire other assets during their long marriage.
However, as already noted, the wife also introduced her savings and her wages for a period after marriage. She thereafter made substantial contributions as a mother and homemaker. As noted by Mr Baston, at one time the wife cared for their four sons under the age of six and later five sons under the age of eleven. In addition to her significant contribution as a mother and homemaker the wife also made significant contributions to the running of the farming operations.
To be fair, the husband does not seek to diminish in any way his wife’s significant contribution over their long marriage. His main point of contention is that his introduction of what is described as the ‘spring board’ should be recognised by some adjustment in his favour.
In addition to the wife’s contributions to which I have already referred, she also contributed an inheritance which was utilised to purchase of assets used in the farming enterprise.
In my view the irresistible conclusion in this case is that the contributions made by each of the parties should be regarded as largely equal.
S 75(2) factors
The wife is 89 and in good health. The husband is 90 and while he has suffered some health setbacks he continues to operate the farm and wishes to continue to be able to do so.
The property pool upon division will provide substantial assets for each of the parties.
I do not consider that any adjustment is required.
Conclusion
Accordingly, the property pool is to be divided equally which will provide each party with assets to the value of $2,643,042.
Proposals of the parties as to how the property should be divided
It is agreed that the wife retain the following assets:
Q Bank account […92] $194,797 Q Bank account […99] $356 Q Bank account […82] $100 St George … […47] $1,718 N Ltd […26] $0 O Ltd (…26) $507,054 Macquarie CMA …21 $11,472 Bankwest …81 $52,997 Motor vehicle $3,000 House contents $500 AMP shares (1852 @ 19/7/ 17 @$5.21) $9,648 IAG x 834 @$6.76 @ 19/7/17 $5,637 AMP Whole of Life Policy …. 22-… $9,251 AMP Whole of Life Policy …. 23-… $13,436 AMP Whole of Life Policy ….41-… $11,206 Tower Policy $12,022 House contents $2,000 IAG x 535 @$6.76 @ 19/7/17 $3,616 BT Funds superannuation $483,403 $1,322,213.00
If the husband were to retain the balance he would have to pay the wife $1,320,829.
The wife would have no objection to the husband retaining the farming properties and his superannuation if he had the capacity to borrow a sufficient sum to pay her out. Unfortunately, there is no evidence before me that provides any confidence that the husband, at 90, and operating a farming venture that has run at a loss for many years is likely to be able to borrow a sufficient sum to pay out the wife.
The husband proposes that he have up to one year to pay out the total sum due to the wife. I recognise that the husband proposes to pay a not insignificant sum to the wife prior to the expiry of that one year.
However, given the parties’ ages and the wife’s understandable wish to end her financial relationship with the husband I do not consider it reasonable for the husband to now embark upon what may be a lengthy process to endeavour to borrow such sum as may be required to pay out the wife.
Notwithstanding that view, I will allow the husband thirty days to arrange finance if possible and pay to the wife $1,320,000 failing which the husband will transfer to the wife his interest in the ‘Property D’ property and ‘Property F’ property and there will be a superannuation split as sought by the wife in the sum of $450,000. The wife will thereby receive an additional $1,275,000 which would leave a balance owing of $45,829.
Mr Lethbridge SC for the wife submitted that the effect of the order sought by the wife (initially) would see the husband retain $75,644 more than the wife and the wife was content with that outcome. Subsequent to that initial position it transpired that the sum held by the husband in his National Australia Bank Account had reduced from $95,313 to $61,327, in turn reducing the disparity by $33,986, still leaving the husband with $41,658 more than the wife. Accordingly, I do not propose to order any further sum to be paid to the wife in the event that the husband fails to pay the $1,320,000. It seems that the requirement of a further sum may simply mean the parties having to continue to have dealings and this prospect seemed to be a motivating factor for the wife in why she did not press for the payment of the balance.
I do not propose to enable the husband to be responsible for selling the properties in the event he is unable to pay the wife $1,320,000 within 30 days but rather will order the transfer of them to the wife who can take charge of selling them without the continuing need for dealings between the parties and/or their solicitors. In that regard I note that each party has incurred significant legal fees to date.
Accordingly, and for the reasons discussed I make the order as set out above. I am satisfied that the result is a just and equitable one in the circumstances.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 02 August 2017.
Associate:
Date: 03/08/2017
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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Statutory Construction
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